Naveed Jan v. The Petition Teams (Security Bureau)

CAMP 85/2021

[2021] HKCA 1498

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 85 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 593 OF 2018)

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Before: Hon Kwan VP and Chow JA in Court

Date of Written Submission: 21 May 2021

Date of Judgment: 15 October 2021

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J U D G M E N T

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Hon Kwan VP (handing down the Judgment of the Court):

1.On 4 August 2020, Deputy High Court Judge Bruno Chan refused to grant extension of time for the applicant to apply for leave to bring judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement protection claim[1].

2.On 7 September 2020, the applicant filed a summons for extension of time to appeal against that decision as the 14-day period to file his appeal was thought to have ended on 18 August 2020.  The applicant’s summons was dismissed by DHCJ Bruno Chan on 23 February 2021[2].  

3.On 17 March 2021, the applicant filed a renewed application with the Court of Appeal for extension of time to appeal against the decision of the judge dated 4 August 2020.

4.The applicant is a national of Pakistan.  He is 26 years old.  He entered Hong Kong illegally on 29 November 2014 and was arrested by the police on 10 December 2014.  He raised his non-refoulement claim on 12 December 2014 on the basis that he will be harmed or killed by the Taliban as his family failed to pay them extortion money.

The Director’s decision

5.By a Notice of Decision dated 9 January 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].

The Board’s decision

6.The applicant appealed against the Director’s decision to the Board.  He attended the hearing before the Board on 28 December 2017.  The Board considered that the alleged risk of harm is within the realm of speculation and cannot justify international protection by way of non-refoulement as the claimant and his brother were not victimized in any way and the applicant had only been in the presence of Taliban members when he was very young (at most aged 11).  The Board held that there is no reason to believe that the applicant will be identified, targeted, harassed or harmed by the Taliban upon his return to Pakistan.  Therefore, the appeal was dismissed by the Board on 5 January 2018.

The intended judicial review

7.The applicant filed a Form 86 and an affirmation on 10 April 2018 for leave to apply for judicial review against the decision of the Board, after the expiry of the three-month period for applying for leave to bring judicial review.  His did not put forward any specific grounds for his intended challenge but only stated that he was not satisfied with the Board’s decision and reiterated his claim of fear of harm from the Taliban.

The judge’s decision

8.DHCJ Bruno Chan considered the application on paper as the applicant did not request for an oral hearing.  The judge focused on assessing the merit of the intended judicial review as the delay of five days was not significant.  The judge held that the Board was correct in finding that the applicant failed to show that he would be personally at risk of harm from the Taliban.  He found there is no reasonably arguable basis or merit in the applicant’s intended judicial review against the finding of the Board.  As there is no prospect of success in the intended judicial review, the judge refused to grant extension of time and dismissed the leave application on 4 August 2020.

Grounds of intended appeal

9.The applicant did not provide any grounds of appeal in his summons or supporting affirmation.

10.His grounds stated in his written submissions may be summarized as follows:

(1)  High standards of fairness are required on the part of decision maker in the determination of torture claim as life and limb are in jeopardy and the applicant’s fundamental human right not to be subjected to torture is involved;

(2)  The adjudicator acted in a procedurally unfair manner in dealing with the applicant’s application without properly assessing the credibility of the applicant.

Analysis and disposition

11.In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

12.Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal.  The applicant took out a summons for extension of time at the court below on 7 September 2020 instead of filing a notice of appeal out of the mistaken belief that the time for appealing had expired at that time. 

13.Pursuant to Order 3 rule 3 of the Rules of the High Court, the period of the Court’s summer vacation shall be excluded in reckoning any period prescribed by the Rules of the High Court or by any order or direction for serving, filing or amending any pleading.  Hence, the period of the summer vacation in August 2020 shall be excluded in reckoning the 14-day period for the applicant to file his notice of appeal[7].  In other words, the time for appeal ended on 14 September 2020, which had not yet expired by the time the applicant filed his summons with the court below on 7 September 2020. 

14.However, the time for appeal has expired when the applicant filed his present summons on 17 March 2021.  Even if the court is minded to excuse the applicant’s delay under the aforesaid circumstances, the court would still assess whether the applicant can show there is a reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application[8].

15.The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

16.In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

17.The applicant’s grounds in the present application are just bare assertions without particulars or evidence.  In particular, the Board’s refusal of the appeal was not based on any adverse finding on the applicant’s credibility.  The Board found that the applicant failed to show a real risk of harm even according to his own case.  The applicant failed to adduce any evidence to refute the Board’s finding or to provide any particulars to show that the Board had failed to apply high standards of fairness or acted in a procedurally unfair manner.  Furthermore, he also failed to demonstrate that the judge was wrong in refusing to grant extension of time for him to apply for leave to bring judicial review.

18.For the above reasons, there is no prospect of success in his intended appeal. We decline to grant extension of time to appeal against the judge’s decision of 4 August 2020 and dismiss the summons filed on 17 March 2021.

The Applicant (Appellant), acting in person

[1] [2020] HKCFI 1781

[2] [2021] HKCFI 328

[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[4] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[6] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[7] Re Satinder Pal Singh [2021] HKCA 319 at §17

[8] Re Gurung Min Bahadur [2018] HKCA 226 at §10